Filibuster Reform Has Right-Wing Media Frantically Condemning Judicial “Power Play”

Right-wing media are continuing to follow GOP talking points opposing filibuster reform by pretending President Obama's attempts to fill judicial vacancies are dangerously unprincipled.

By shamelessly repeating Sen. Chuck Grassley's debunked analogy that the president's current nominations to the important U.S. Court of Appeals for the D.C. Circuit are a "type of court-packing reminiscent of FDR's era," right-wing media appear to be running out of excuses for rampant Republican obstructionism. Consequently, this "radical and different" treatment of the president's nominees as opposed to that of past Republican presidents has led to the real possibility that Senate rules will be changed in July to require up-or-down votes for executive and judicial nominees.

GOP insistence on clinging to an ahistorical characterization of the president's moves to fill existing seats on the D.C. Circuit as tantamount to former President Franklin Roosevelt's proposal to create new seats on the Supreme Court has been dismissed as “silly on its face” and incapable of “passing the laugh test” by multiple experts.

Nevertheless, The Weekly Standard has parroted the false line, declaring that the “nominations are simply a power play” so the court will “vote in his administration's favor all the time.” The Wall Street Journal similarly warned that the president wanted judges who “rubber stamp liberal laws,” leading him to his “flood-the-zone strategy” for the D.C. Circuit, “a liberal power play that shows contempt for traditional political checks and balances.” is breathlessly proclaiming the nominations show “Obama has declared war on judicial independence” and is “trying to declare law by executive fiat.”

Ironically, Grassley and now Rep. Tom Cotton have introduced bills that would block the president's nominations by eliminating the vacant seats -- literally court-packing in reverse. In a companion move to their bad sense of history, the GOP is relying on bogus numbers to claim the D.C. Circuit doesn't need the president's nominees because of its workload, an assertion refuted not only by the nonpartisan Judicial Conference of the United States (which recommends the size remain the same), but also by the court's former Chief Judge and the Chief Justice of the Supreme Court. Right-wing media are nonetheless repeating this discredited spin, in support of the unprecedented Republican blockade of judicial nominees.

The additional GOP threat of filibusters of the president's executive nominees to head the Labor Department, the Environmental Protection Agency, and the Consumer Financial Protection Bureau has led Senate Majority Leader Harry Reid to warn he will demand a simple majority vote for all of the president's nominees in July. 

Right-wing media claim this is a "flip-flop" because Democrats did the same thing to Republican nominees. In fact, previous Democratic opposition to the nominees of former President George W. Bush is no longer comparable to the current Republican obstruction and their increasingly ridiculous justifications. As American Enterprise Institute scholar and congressional expert Norm Ornstein reported, Grassley's court-packing rhetoric made him “laugh out loud” at the absurdity of the comparison:

[I]t brought back to me the long controversy over the so-called nuclear option to erase filibusters on judicial nominations that gripped the Senate from 2003 to 2005. Back then, Senate Majority Leader Bill Frist, frustrated by Democrats' filibusters and threatened filibusters of Bush Appeals Court nominees Miguel Estrada and Priscilla Owen (and the fear of a filibuster on a potential Supreme Court nominee), threatened to change the Senate's rules in midstream by simple majority, declaring filibusters on judicial nominees as unconstitutional.


[A]s the threats to blow up the Senate's rules reached a crescendo in May 2005, a “Gang of 14” senators, seven from each party, reached a deal that enabled several Bush nominees for Appeals Court positions to get up-or-down votes, excluded a couple of others, and declared that all would support cloture of future judicial nominees through the 109th Congress except under “extraordinary circumstances.” The deal held throughout that Congress, but when Barack Obama became president, it was clear early on that the deal was at best moribund--two Republican members of the Gang of 14, John McCain and Lindsey Graham, joined in a filibuster of an Obama pick for the Seventh Circuit, David Hamilton, without any reference to an “extraordinary circumstances” rationale.


I remain deeply uneasy about a nuclear option, even as I condemn the unprecedented obstructionist tactics employed in the Senate (which were also condemned last week by Bob Dole and lamented by John McCain) and call for deeper reforms, especially on nominations, in Senate rules. The fallout from such a move is unknown but would be substantial and deleterious. It would be far better to return to regular order, and to the use of filibusters as rare events, not routine ones. But if senators who know better--like Lamar Alexander, Bob Corker, Susan Collins, Lindsey Graham, and Saxby Chambliss--jump when McConnell tells them and continue to obstruct nominations, they should expect to reap the whirlwind. And they, and their colleagues, will be the ones responsible for the damage done.

Indeed, as the Alliance for Justice has documented in an analysis of cloture votes of the past eight years, "only the Democrats in the Gang of 14 defined 'extraordinary' in a way that's recognizable to ordinary Americans." That is, after Republicans got the conservative judges they wanted confirmed under Bush, they picked up their toys and went home.

Contrary to right-wing media's claims that Reid will be "reneg[ing] on his agreement with Minority Leader Mitch McConnell" if he puts a stop to the incessant escalation of permissible instances of filibuster, it is the GOP who have "caused something not far from a crisis in our constitutional system" by refusing to adhere to any bipartisan agreements. A look at the ideological composition of the courts explains the real reason behind the obstruction.

Culminating in the last Bush administration, under which wave after wave of conservative nominees were sent to a Senate controlled by Democrats, the last three Republican presidents actually have been quite successful at “flood-the-zone” strategies. The ensuing right-wing tilt of the federal judiciary, especially at the upper levels, has been dramatic.

Take the Reagan-pick Judge David Sentelle, currently on the heavily conservative D.C. Circuit the president is trying to balance, whose latest shocking decision overthrew decades if not centuries of precedent in order to disallow the president further recess appointments. Or his possibly more extreme colleague, Judge Janice Rogers Brown, who has criticized New Deal programs as "the triumph of our own socialist revolution" and formally advocated for a rejection of the results of the “democratic process” that led to such progressive legislation, a blend of "political and judicial roles" that even conservative legal experts have balked at.

There are plenty more examples.

Just this week it was reported that at an unrecorded Federalist Society speech, Judge Edith H. Jones of the Fifth Circuit - another Reagan nominee - allegedly claimed "blacks and Hispanics were more prone than others to commit violent crimes and that a death sentence was a service to defendants because it allowed them to make peace with God." Jones has been repeatedly pushed by right-wing media as suitable for the Supreme Court.

Not to say Democrats don't appoint liberals - of course they do - but the current president's nominees have been so much more mainstream that Republicans have strained for reasons to oppose on the merits, almost giving up entirely in the face of wide bipartisan praise for the president's last pick, Judge Srikanth Srinivasan. Now, Sen. Mitch McConnell is clinging to the Grassley-Cotton excuses, questioning the "appropriateness" of any more D.C. Circuit confirmations, and bemoaning the "culture of intimidation" behind the president's attempts to fill vacant seats. Neither the GOP nor right-wing media seem to have yet attacked these current nominees' actual qualifications.

Ultimately, it appears the incessant moving of the goalposts by the GOP for the benefit of Republican nominees at the expense of Democratic ones may have finally gone too far. Right-wing media can continue to recycle GOP excuses for the next month or so, but if Reid finally seriously takes up filibuster reform, Ornstein is right. Republicans will have only themselves to blame.